Mayfield v. Mayfield: The trial court denied the former wife’s request for an award of attorneys’ fees and costs, finding the parties’ incomes were similar.
By Richard D. West, family lawyer
The parties were divorced by Final Judgment entered in 2003. The Judgment required the Former Husband to pay $1,400 per month in child support for the three minor children of the marriage. The Former Husband’s child support was always current. From 2003 through March 2009, the Former Husband made additional child support payments through the State Disbursement Unit which totalled approximately $23,000. The Former Wife did not deposit these additional payments into an account for the benefit of the children. The funds were expended for the current needs of the children for tutoring and the costs of extracurricular activities. In March 2009, when the Former Husband stopped paying the additional amounts, the Former Wife filed a Petition seeking an increase in child support based upon the Father’s increased earnings and an increase in the needs of the children.
At trial, the Court increased the Father’s child support obligation from $1,400 per month to $1,882 per month. This new amount included a downward deviation of less than 5% based upon the Father’s history of additional and timely payments of support. The trial court further credited the Father $438 per month against his on-going obligation for the overpayments he had made for “the remainder of the time he is required to pay support.” The modification was prospective only and not retroactive to the date of filing of the Former Wife’s Petition.
The Former Wife appealed. The appellate court found that it was an abuse of discretion to credit future child support for the excess payments the Father had voluntarily made in the past. The parties had no agreement that the payments were an advance on future child support. The monthly credit for overpayment was vacated. Further, as the trial court found that the needs of the children had increased, and there was no record basis indicating that the need for additional support did not exist at the time the petition was filed, the retroactive modification should have been effective as of the date of the Former Wife’s Petition.
The trial court further denied the Former Wife’s request for an award of attorneys’ fees and costs, finding that the incomes of the parties were similar. However, the trial court erroneously included child support as income to the Former Wife in making this determination. For purposes of income for determination of attorney fees and costs, the amounts paid by the Former Husband for alimony and child support should be deducted from his income, and the amount received in alimony by the Former Wife should be included in her income. The Former Wife’s income should also be reduced for her share of the child support duty, citing to Pelton v. Pelton, 617 So.2d 714 (Fla. 1st DCA 1992).
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Richard D. West is a board-certified attorney in Marital and Family Law by The Florida Bar and The National Board of Trial Advocacy. A past president, current Fellow and State Governor Representative of the prestigious Florida Chapter of the American Academy of Matrimonial Lawyers, West is also a partner at the Florida law firm West, Green & Associates, P.L.
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